Front-of-Pack Nutrition Labelling: Experts Come Together to Discuss National, Regional and Global Challenges for Regulation

Photo by Penn State on Flickr

In this post, Dr Nikhil Gokani (School of Law, University of Essex), an expert on regulating food labelling, writes about a major conference he organised with partner institutions.

On September 9 and 10, 2021, the Health and Medical Humanities Hub at the University of Essex, the Law & Non-Communicable Diseases Unit at the University of Liverpool and the Global Center for Legal Innovation on Food Environments of the O’Neill Institute for National and Global Health Law at Georgetown University jointly held a major online conference on the national, regional, and global regulatory implications of front-of-pack nutrition labelling (FoPNL).

Unhealthy diets are a leading cause of death and a significant factor in the development of non-communicable diseases (NCDs) as they are associated with an increased risk of overweight, obesity, and diet-related NCDs such as diabetes, cardiovascular diseases and cancers. To tackle the growing burden of poor nutrition, the World Health Organization (WHO) recommends that states implement FoPNL as part of a comprehensive approach to healthy diets. FoPNL displays simplified, at-a-glance graphical information on the front of food and beverage packaging. It helps consumers understand the nutritional quality of foods and beverages easily and more quickly, and can lead to healthier purchasing decisions, especially with members of lower socioeconomic groups. Even though the evidence base is still developing on how specific forms of FoPNL can best meet consumer needs, FoPNL is most effective when it is interpretive and makes an evaluative assessment about the nutrition quality of food and beverage products.

Many states have now introduced, or are considering introducing, a variety of voluntary or mandatory FoPNL schemes within their respective jurisdictions. These schemes differ in objectives and, consequentially, in design. In particular, the level of public health protection offered by these different schemes varies, not least as the ease of understanding, and the level of interpretation required by consumers to understand the nutrition composition of the food is different for each scheme. In light of the proliferation of national schemes, discussions are being held at the regional and global levels on the harmonization of FoPNL. At the same time, these developments face strong opposition from powerful food and beverage businesses.

In this context, the conference brought together global actors. It gathered over 250 participants from 39 countries, from Antigua to Vietnam, and provided a discussion forum where academics from various disciplines, international civil society organizations, and government and public health agency representatives discussed a range of overarching issues relevant to the regulation of FoPNL. The conference was organized into six panels.

Panel 1 began the event with a discussion on the importance for states of adopting FoPNL, and in particular interpretive FoPNL. Panellists discussed the rationale for FoPNL and the scientific evidence supporting this intervention, including the role of FoPNL in building healthier food environments and reducing health inequities, as well as the support it has received from the international community. Panellists explored states’ obligation under international human rights law to uphold the right to the enjoyment of the highest attainable standard of health and other related human rights, such as the rights to adequate food, information, and the benefits of scientific progress, through the implementation of FoPNL.

Panel 2 focused on national experiences. In particular, panellists discussed the development, adoption and implementation of legislation mandating warning signs on certain foods and beverages in the Americas – with case studies form Mexico and Uruguay – and government-endorsed schemes in Europe – not least the Nutri-Score which originated in France and UK multiple traffic light labelling. This panel highlighted the importance of gathering evidence and galvanizing public support, in addition to raising key questions concerning the different objectives that different FoPNL schemes pursue, as well as the nutrient profiling models underpinning them.

Panel 3 concluded the first day by looking at how national schemes had been – and could be – contested at the World Trade Organization (WTO) Technical Barriers to Trade (TBT) Committee and, were a formal legal dispute to arise before the WTO Dispute Settlement Body or an international arbitration tribunal, what arguments could be made and how they could be addressed. Ultimately, all panellists agreed that the question was not so much the lawfulness of FoPNL but its implementation. Under this framework, it is indeed possible for states to adopt effective FoPNL schemes, but they will be more equipped to do so well if they are mindful of their obligations under international trade and investment law and if they anticipate potential legal disputes (even if these disputes never do arise). In fact, linking the discussions of Panels 1 and 3 together, while states have some degree of discretion as to how to regulate FoPNL, it is clear that they have an obligation to do so under international human rights law.

One the second day, after discussing national experiences, the focus moved to regional harmonization and global standards. Panel 4 focused on the experience of the European Union (EU) and the anticipated developments following the European Commission’s repeated announcements that it would publish a proposal for an EU-wide FoPNL scheme in 2022. The discussions highlighted the limits of EU law as it currently stands, preventing Member States from mandating FoPNL at national level. After hearing the plans of the European Commission, panellists analysed the imperative for the EU to adopt a regulatory framework introducing an EU-wide, mandatory, interpretive FoPNL scheme, or, at the very least, a framework that does not prevent Member States from adopting mandatory FoPNL at the national level in the absence of enough political will to act effectively at regional level.

Panel 5 focused on the experience in Latin America and the Caribbean, bearing in mind that an increasing number of countries have already regulated or are in the process of regulating FoPNL, and that regional bodies, such as MERCOSUR and CARICOM, are reflecting on common rules. In the case of South America, panellists stressed that trade-related arguments were often used to halt or delay national FoPNL measures, though MERCOSUR empowers countries to take unilateral measures to protect public health. In the case of the Caribbean, panellists emphasized the flaws in CARICOM’s process, including due process concerns related to the food and beverage industry’s disproportionate influence in policy decisions. They also addressed the use of inaccurate trade-related arguments as a barrier for regional progress on FoPNL. In turn, in North America, panellists echoed the above concerns on the use of trade agreements as barriers to achieving health-related goals, inspiring contradictions in policy decisions as a result of political swings that endanger the sustainability of public health policies.

Finally, panellists expanded the discussions from the regional to the global plane. Panel 6 concluded the proceedings with a discussion on the role that Codex Alimentarius standards could play in promoting or hindering effective FoPNL schemes. In particular, panellists discussed what the international community could do to promote better consumer information through the adoption of common standards on FoPNL, not only at a regional but also at a global level. They also reflected on how to ensure that these standards were an effective tool of public health protection, rather than subservient to the food and beverage industry’s interests, and more specifically how the voice of public health could be better heard in this joint commission of the WHO and the UN Food and Agriculture Organization.

Having discussed the national, regional, and global regulatory implications of FoPNL, with a particular focus on the policy debates in the Americas and Europe, this conference made clear that comparisons between different FoPNL schemes should indeed be drawn with caution, paying particular attention to the objectives each of these schemes set out to achieve. The devil lies in the detail, and the law and public health communities need to tread cautiously if they are to resist the opposition from powerful food and beverage industry actors and ensure that FoPNL schemes effectively serve the interest of consumers and the protection of public health.

Realising the Right to Health

Photo by Marcelo Leal

The right to health, or ‘the right to the enjoyment of the highest attainable standard of physical and mental health’ to give it its full name, is a fundamental human right which extends beyond a right to healthcare to include a range of pre-conditions for a healthy life.

According to the Office of the United Nations High Commissioner for Human Rights (OHCHR), ‘every State has ratified at least one international human rights treaty recognizing the right to health. Moreover, States have committed themselves to protecting this right through international declarations, domestic legislation and policies, and at international conferences.’

Yet evidence from around the world suggests States’ commitments to ‘progressively realise’ the right to health are yet to lead to practical progress.

What is required, then, to help States move from treaty signing to practical action?

The challenge

While most countries have signed up to treaties containing binding obligations in relation to the “progressive realisation” of the right to health, a lack of clarity on the scope of the right to health and historical confusion regarding appropriate indicators and benchmarks has created ambiguity, which some have used to sidestep their commitments.

What we did

Drawing on the fields of international human rights law and public health governance, research led by Judith Bueno de Mesquita, from our School of Law and Human Rights Centre, has sought to look at the expectations, or norms, in relation to the right to health, in the context of specific health issues, with a particular focus on sexual and reproductive health and rights (SRHR).

In a field that has been dominated by discussions of constitutions and legislation, this research focuses on the framework of regulations and policies required at national level, for implementation.

Bueno de Mesquita was appointed as a consultant by the United Nations Population Fund (UNFPA) to work with two national human rights institutions, the Commissioner for Human Rights, Azerbaijan, and the Ombudsperson Institution of Kosovo. In this consultancy role, she led the research required for national assessments looking at sexual and reproductive health.

These consultancies allowed her to apply her research to country contexts, and assess the degree to which the legislative, regulatory and policy environments were compliant with international human rights standards in the area of SRHR.

What we achieved

In Azerbaijan, the resulting report contributed to the Government taking sexual and reproductive health and rights more seriously, and provided valuable advocacy tools. The report was used to lobby the Azerbaijan Parliament to incorporate sexual and reproductive health issues into the State Program on Demography and Population Development and to develop the National Action Plan on Gender-Based Violence to ensure effective implementation of the 2010 law on domestic violence prevention.

The report was also showcased as a case study in the United Nations Population Fund’s ground-breaking guidance (UNFPA: 2019, pp. 76-78).

In Kosovo, Bueno de Mesquita’s recommendations were contained in the Ombudsperson Institution’s 2016 report, resulting in life-changing impact for rights-holders, including:

  • the provision of free contraceptives to vulnerable groups
  • the supply of low-cost condoms via vending machines
  • a decision to retain contraceptives on the essential drugs list
  • an increase in health inspectorate staffing, with human rights integrated into this organisation’s work
  • steps taken to make maternal death audits consistent with World Health Organisation guidelines
  • and the adoption of a rights-based national HIV action plan.

The impact in Kosovo is ongoing, with the report continuing to inform the next cycle of Azerbaijan’s Reproductive Health Strategy.

In both countries, the research of Judith Bueno de Mesquita has successfully bridged the gap between theory and implementation, supporting significant progress and providing useful examples of how national legislative and policy frameworks can help realise States’ commitments in relation to the progressive realisation of the right to health.

This impact case study was first published on the website of the University of Essex and is shared here with permission and thanks. Read the original story here. You can follow Judith Bueno de Mesquita on Twitter here.

Front-of-pack nutrition labelling in the EU: proposals for a mandatory EU-wide label

Dr Nikhil Gokani, Lecturer in Law, University of Essex.

The European Commission published its Farm-to-Fork Strategy on 20 May 2020. In this, the Commission declared that to ‘empower consumers to make informed, healthy and sustainable food choices’, the Commission will propose harmonised mandatory front-of-pack nutrition labelling (FoPNL) by the fourth quarter of 2022.

As part of these plans, the Commission published an inception impact assessment and published two initiative Roadmaps: “Food labelling – revision of rules on information provided to consumers” and “Facilitating healthier food choices – establishing nutrient profiles”. Feedback on these opened on 23rd December 2020 and will close on 3rd February 2021.

In this post, Dr Nikhil Gokani, whose research explores the regulation of FoPNL, which was also the topic of his PhD, briefly sets out his views on how the EU should proceed with the regulation of FoPNL. To further develop the understanding of the regulatory issues involved, and bearing in mind the Commission’s target for legislative proposals, Dr Gokani and Prof Amandine Garde (Law & Non-Communicable Diseases Unit, University of Liverpool) are organising a conference on FoPNL – to explore the national, EU and international regulatory issues – which is provisionally scheduled for September 2021.

Back-of-pack nutrition labelling (BoPNL) does not sufficiently contribute to informing consumers, promoting healthier diets or tackling the rise in overweight, obesity and diet-related non-communicable diseases.

Evidence is clear that consumers find BoPNL confusing. They do not perceive nor understand BoPNL well, and they are unable to use this type of labelling effectively to help them make healthier food purchasing and consumption decisions. This is particularly so for consumers of lower socioeconomic groups.

Interpretive front-of-pack nutrition labelling (FoPNL) is an evidence-based intervention to inform consumers, help them make healthier food purchasing and consumption decisions, whilst encouraging manufacturers to reformulate products to make them healthier.

Effectively presented FoPNL is better perceived relative to BoPNL. Surveys have shown high levels of use, and research on various FoPNL schemes has shown improved trolley outcomes. FoPNL has a statistically significant effect in steering consumers’ choices towards healthier products, whilst encouraging product reformulation.

Interpretive FoPNL has consistently been shown to be most effective in improving health-related understanding, reducing processing time and improving purchasing intentions, with simpler schemes generally being better understood.

The EU should introduce a mandatory, interpretive EU-wide FoPNL scheme.

EU law, as it stands, precludes Member States from adopting mandatory FoPNL at national level (Regulation No 1169/2011 on food information to consumers and Regulation No 1924/2006 on health and nutrition claims) and does not effectively promote the voluntary adoption of evidence-based FoPNL schemes.

To be most effective, FoPNL should be mandatory for all food products. Any exceptions should be limited and only permitted where there are clear evidence-based justifications. The introduction of a mandatory pan-EU FoPNL scheme in the EU would help ensure a high level of consumer protection and public health while improving the functioning of the internal market. Moreover, this would be consistent with the EU’s obligations to protect consumers and their health, and to comply with fundamental rights as mandated by the EU Treaties and the EU Charter.

FoPNL should be: developed in a transparent manner; based on effective stakeholder engagement with conflicts of interest managed; effective in improving outcomes for all population sub-groups; supported by well-resourced education campaigns; encourage product reformulation; permit the comparison of products within and between food categories; monitored and evaluated for effectiveness; and reviewed periodically.

The presentation of EU-wide FoPNL

The evidence base supports the introduction of a mandatory, interpretive pan-EU FoPNL scheme. Hence, the EU should not move forward with FoPNL option 0 (“Baseline” ie business as usual) nor FoPNL option 1 (“Nutrient-specific labels – numerical” eg NutrInform). With FoPNL option 3 (“endorsement logos” eg Keyhole), consumers tend to over-estimate the healthiness of products, and there is insufficient research on the effectiveness of this type of FoPNL. By contrast, research has shown that option 2 (colour coded eg Traffic Light Labelling) and option 4 (graded indicators eg Nutri-Score) are effective in meeting public health objectives of increasing salience, improving understanding and improving purchasing intention as well as actual purchasing decisions.

Relative to other schemes in use in the EU, Nutri-Score presents a number of advantages which favour its adoption across the EU. Firstly, Nutri-Score is widely supported by a broad range of stakeholders, including many public health organisations and consumers themselves. Secondly, Nutri-Score has been evaluated in several large-scale studies evaluating perception and comprehension in French populations. It has been shown to improve understanding and lead to better basket outcomes, particularly with consumers from more vulnerable populations. Thirdly, the scheme has been adopted by several Member States, which would facilitate its extension to other EU Member States.

The nutrient profiling model underlying EU-wide FoPNL

It is a prerequisite that the development of interpretive FoPNL is based on an evidence-based nutrient profiling model. This model should encourage consumption of fruit, vegetables and wholegrains and other health-promoting food categories and ingredients; and discourage the consumption of fat (especially trans and saturated fatty acids), sugar (especially free sugar) and salt. Smaller portion sizes, energy density, level of processing and artificiality of ingredients may also be reflected in the model. The model, and the way FoPNL displays the classification derived from the model, should permit meaningful comparisons in order to encourage healthier substitutions both within and between categories.  The model should classify food based on a scoring system which provides continuous gradations of healthiness of the food in order to encourage continuing reformulation. It should be based on uniform reference values (100g/ml)

Nutri-Score is based on a nutrient profiling model which was originally developed in the UK and was found to be largely consistent with French nutrition recommendations. A diet, which is consistent with recommendations derived from the model, was found to result in improved health markers amongst the population. There is evidence that the Nutri-Score nutrient profiling model would also be effective for diverse European populations.

However, the model would need to be altered to address certain criticisms. To this end, EFSA should be tasked with developing an objective, evidence-based model free from undue industry interference. Alternatively, noting the Commission’s failure to adopt nutrient profiling for the purposes of Article 4(1) of Regulation No 1924/2006, the development of this nutrient profiling should be tasked to a scientific committee of independent experts from across the EU.

In the absence of a mandatory pan-EU FoPNL scheme, the EU should not prohibit mandatory national schemes.

The controversies surrounding the adoption of Regulation 1169/2011 and Regulation 1924/2006 have shown that reaching consensus across Member States is likely to be extremely difficult. There is a real risk that, in the absence of sufficient political will, the EU may fail to adopt a single pan-EU mandatory FoPNL scheme. It is therefore important that the Impact Assessment anticipates these difficulties and contains an additional FoPNL option exploring the implications of a partial harmonisation scheme whereby EU law would permit Member States to introduce effective mandatory national schemes, as noted in the Presidency Conclusions on front-of-pack nutrition labelling, nutrient profiles and origin labelling of 15 December 2020.

The nutrient profiling model should also be used to regulate the use of health and nutrition claims more effectively, as mandated by Regulation No 1924/2006.

The controversies surrounding the adoption of Regulation 1169/2011 and Regulation 1924/2006 have shown that reaching consensus across Member States is likely to be extremely difficult. There is a real risk that, in the absence of sufficient political will, the EU may fail to adopt a single pan-EU mandatory FoPNL scheme. It is therefore important that the Impact Assessment anticipates these difficulties and contains an additional FoPNL option exploring the implications of a partial harmonisation scheme whereby EU law would permit Member States to introduce effective mandatory national schemes, as noted in the Presidency Conclusions on front-of-pack nutrition labelling, nutrient profiles and origin labelling of 15 December 2020.

The use of health and nutrition claims is a marketing tool intended to encourage consumers to purchase certain products. As claims lead to an increase in consumption and overall energy intake, it is important that they do not mislead consumers and, in particular, that they do not mask the overall nutrition profile of food products. Under Article 4 of Regulation No 1924/2006, the Commission should have adopted an EU-wide nutrient profiling model to restrict the use of food claims on unhealthy products by 19 January 2009. The Commission should finally fulfil this obligation as a priority to ensure that businesses operate within a level playing field and consumers are finally protected from the most misleading forms of commercial food information. It would be logical for FoPNL and food claims to be based on the same underlying nutrient profiling model.

The EU should extend mandatory back-of-pack and mandatory front-of-pack nutrition labelling to alcohol.

It is extremely concerning that alcoholic beverages containing more than 1.2% by volume of alcohol are exempt from the requirement of displaying a nutrition declaration. Even when such a declaration is provided on a voluntary basis, it can be limited to an energy-only declaration in a non-tabular format.

There is increasing evidence that there is a deficit in consumer knowledge and understanding of the nutritional content of alcoholic beverages and the consequences of their consumption. Moreover, consumers are interested in alcohol nutrition labelling across Member States. In any event, the exemption is illogical bearing in mind that EU consumer law, and the EU Alcohol Strategy of 2006 more specifically, aims to ‘provide information to consumers to make informed choices’.

Human Rights, Childhood Obesity and Health Inequalities

Photo courtesy (Brett Jordan)

Dr Nikhil Gokani, Lecturer in Law, University of Essex, has co-authored a new book chapter on human rights, childhood obesity and health inequalities with Dr Marine Friant-Perrot.

The prevalence of childhood obesity, and its rapid increase, is not distributed equally across populations. Some groups of children are more likely to live with obesity than others, with childhood obesity being strongly associated with belonging to socioeconomic groups consuming more energy-dense diets. These health inequalities are largely systematic, and are mostly the result of the social, political and economic environment in which children live and play.

Despite the creation of a health-promoting environment for all children being recognised by the international community as a matter of societal responsibility, inequalities in childhood obesity are growing. Within legal frameworks, social, cultural and economic rights are well placed to help reduce the prevalence of obesity. These human rights are inspired by the principle of solidarity and, as they are conceived as instruments of social transformation, they aim to provide corrective measures to economic liberalisation. As their essence is to protect everyone equally, the reduction of health inequalities in childhood obesity can be articulated within this human rights discourse.

This book chapter argues that, through helping to restore a real capacity for choice in food consumption, and thereby supporting healthier diets for every child, the right to non-discrimination on the basis of socioeconomic status and the principle of equality can be thought of as a foundation for realising social rights, in particular the right to health and the right to food. Moreover, it explores the implications of a human rights approach grounded in the right to non-discrimination for reducing health inequalities in childhood obesity prevention strategies. It calls for State implementation of restrictions on the marketing of unhealthy food to children as an evidence-based method to reduce inequalities and help better fulfil children’s right to non-discrimination and protect them from unnecessary commercial influences.

This book chapter was co-written with Marine Friant-Perrot (University of Nantes) and published in Amandine Garde, Joshua Curtis and Olivier De Schutter (editors), Ending Childhood Obesity: A Challenge at the Crossroads of International Economic and Human Rights Law (Elgar, December 2020).